ICC ASP Blog

6 December 2018 – Liechtenstein hosted a panel this morning at the Assembly of States Parties (ASP) titled “The ICC’s Jurisdiction Over the Crime of Aggression”. This panel sought to discuss the significance and broader context of the crime of aggression. Panelists included IntLawGrrl Jennifer Trahan, Professor at the Center for Global Affairs at New York University, David Donat Cattin, Secretary-General of Parliamentarians for Global Action, and Donald Ferencz, the Convenor of the Global Institute on the Prevention of Aggression. This panel complemented many of the comments that States made at the General Debate session held yesterday that continued after this panel on the activation of the crime of aggression.

Many States Parties made supportive statements on the activation of the crime of aggression during the General Debate on Day 1 that continued after Liechtenstein’s panel today on Day 2. Austria spoke on behalf of the European Union (EU) in support of the activation of the crime of aggression, and all EU member states commented that they supported Austria’s statement. Most notably, however, France was quite critical of the Kampala Amendments as promoting division amongst States Parties when the focus should be universality. China as well was critical of the Amendments, stating that the International Criminal Court (ICC) should not undermine the Security Council, as it is this body that is responsible for upholding international peace and security. Given that China is a permanent member of the Security Council and is not a party to the ICC, this comment is not surprising. Many states commented that they are in the process of ratifying the Amendments, which was a welcome announcement, including Paraguay and Greece.

During the panel, Jennifer Trahan began the discussion with an analysis of the text of Article 8bis of the Rome Statute which enumerates the crime of aggression. As discussed in my previous post, Trahan stated that the language in Article 8bis derives from the London Statute of the Nuremberg Tribunal and that the crime of aggression is not meant to encompass all violations of Article 2(4) of the UN Charter, but manifest violations. Manifest violations, she clarified, are those that are super clear and not in a grey zone. She also discussed the novel jurisdictional regime that exists within the crime of aggression with regard to state and proprio motu referrals compared to the other three international crimes: non-States Parties to the Rome Statute are completely excluded from the Court’s jurisdiction over the crime of aggression; not all States Parties are covered because they must first ratify the Amendments; and there is an opt-out method for States to opt out of the Court’s jurisdiction over the crime.

Photo credit: coalitionfortheicc.org

David Donat Cattin held a very positive view on the activation of the crime of aggression and discussed some of the progress being made for further ratifications. He referenced the Austrian delegate’s support for the activation of the crime of aggression on behalf of the EU and hoped that this statement would have an impact on other EU member states to encourage their ratification. He also mentioned that the Dominican Republic will be voting on whether to ratify the amendment in the next year. He added that the Central African Republic is likely to join because they are subjected to foreign interference on all sides. He also mentioned that South Africa highlighted the historic significance of the Kampala Amendments at the General Debate, so this may indicate its ratification in the next year.

Donald Ferencz completed the panel with some very engaging comments that started with this statement: “the rule of law is for the little people”. He commented that a state like Liechtenstein, who has ratified the Amendments, is likely not about to commit the crime of aggression, but two permanent members of the Security Council who are also States Parties to the Rome Statute (referencing the UK and France) have not ratified the Amendments. This sends the message that this law/crime is not for bigger states like the UK and France, but is for the smaller states, who are unlikely to be the ones committing the crime in the first place. This was quite an interesting comment in light of France’s statement regarding the Kampala Amendments promoting division at the General Debate yesterday.

One quite interesting debate that evolved out of the panel concerned how to hold state officials liable for the crime of aggression when the state is not a party to the Rome Statute, with specific reference to the Russian invasion of Ukraine. This question was first brought up by Sabine Nolke, Canadian Ambassador to the Netherlands. A few intervenors were of the view that, in the case of Russia, war crimes committed in Ukraine (because Ukraine is a party to the Rome Statute) can be prosecuted and the Court could consider the fact that Russia committed an act of aggression as an aggravating factor in the prosecution of war crimes and in sentencing. Nolke and members of the panel, however, cautioned against this view because it suggests that war crimes committed in non-aggressive wars are less grave or less prosecutable. She and the panelists stressed that war crimes are war crimes no matter the context, and they should not be treated differently based on whether or not there is an aggressive war.

States’ comments during the General Debate and the discussion during this panel indicate that, although there seems to be a large degree of support for the activation of the crime, ratification is still a live issue and questions of jurisdiction are far from settled..

This blogpost and the author’s attendance to the 17th Assembly of States Parties to the International Criminal Court are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada

4 December 2018 – The year 2018 marks the twenty-year anniversary of the Rome Statute, adopted on July 17, 1998, for the establishment of an International Criminal Court (ICC). This makes the annual session of the Assembly of States Parties (ASP), from December 5 to 12 in The Hague (Netherlands), especially significant. Commentators have signaled that this is a relatively uncontroversial ASP, focusing largely on budget: the so called ‘zero nominal growth’ policy taken by some key states parties (Canada, France, Germany, Spain, Italy, Japan, and the UK) in past years has resulted in insufficient resources being allocated to the Court. While the budgetary contribution on the part of states may have been satisfactory upon the Court’s inception, the evolutionary increase in investigations, caseload, and the overall financial burden of greater outputs requires more resources to operate both efficiently and effectively.

The bigger problem does not begin and end with contemporary US opposition to the ICC. The issue of strong politicization has hampered the effectiveness and robustness of the ICC for years. As seen in Burundi in 2016, governments abandon and withdraw from the ICC when there is a fear of punishment and accountability for bad behaviour. Similar action has been taken by the Philippines, whose president also withdrew from the ICC following the opening of a preliminary examination into alleged crimes there earlier this year.

The demise of this relationship was triggered by the fallout in 2015 following al-Bashir’s attendance at an AU Summit in Sandton (South Africa). The ICC demanded that South Africa arrest and surrender him – yet government authorities facilitated his escape from the country. It became apparent that the then-government of South Africa prioritized its obligation to the AU over and above any obligation to the ICC. This relationship breakdown is particularly significant given the prominent role taken by South Africa in the negotiation of the Rome Statute, coupled with South Africa’s historical promotion of human rights on the continent and across the world in the post-apartheid era.

Under the Rome Statute system, the ICC is only as strong as states allow it to be, since it fundamentally relies upon state cooperation to fulfil its mandate. To be sure, there is a direct correlation between cooperation and effectiveness. Therefore, if states are not cooperating, it becomes necessary to examine why. From the purview of international criminal law advocates, when states withdraw to avoid accountability, it raises serious doubts about the legitimacy of that particular state, and not of the ICC per se. For example, although Burundi’s withdrawal notice focused on the ICC’s hyper-focus on African situations, this legitimate criticism is muddled by evidence of crimes against humanity including: extrajudicial killings, disappearances, arbitrary arrests and detentions, torture and sexual violence that the United Nations Commission of Inquiry on Burundi reported on in September 2017.

In the Philippines, the notice of withdrawal stemmed from claims made by President Rodrigo Duterte that the ICC was being used as a ‘political tool’. The ICC’s preliminary investigation in the Philippines looked into alleged crimes against humanity perpetrated by Duterte and top officials with respect to a war on drugs that has killed thousands in abhorrent ways. Claims of due process violations, complementarity issues and the like are weighty, yet overshadowed by plainly bad behaviour on the part of the President and other top state officials. Here again, even if discontent with the ICC was well-founded, any attempt to skirt accountability for alleged criminal behaviour taints the perceived credibility of the government’s claims. It would have been far more constructive to have a meaningful conversation and reach some form of mediation or compromise rather than abandoning the ICC altogether. Yet, this is not the reality and it is imperative that international criminal law supporters ensure that these decisions to withdraw from the ICC do not permanently recede or damage the legitimacy of the project (and norms) overall. This will be an important task at the ASP and beyond.

Fortunately, the Prosecutor preserves temporal jurisdiction over crimes allegedly committed during the time that Burundi and the Philippines were States Parties to the Rome Statute, i.e. before the respective withdrawals came or come into effect. Yet, the ability of the Prosecutor to properly investigate these alleged crimes is seriously challenged in the wake of withdrawal. From an international relations perspective, at least in realist terms, it is obvious that states reject international criminal law when it threatens that states’ relative interests and power. What is less clear is how the international criminal justice norms can guide the behaviour of other states, institutions, and organizations to undermine and/or shame these self-interested acts. It is highly important for states to assert a shared commitment to this global norm at the ASP and beyond for this purpose, but also to affirm universal expectations of behaviour in the global arena.

Another concern centers on the ICC’s inability to fulfill its mandate due to the crippling politicization that permeates the framework of the Rome Statute. Notably, the role of the UN Security Council as being the only way to refer a non-States Party to the Court should provide some comfort to John Bolton and Donald Trump. Yet, this should deeply trouble proponents of international criminal law and international criminal justice. In the same way that the US holds the key to veto any referral that could implicate any US citizen or citizen of an allied country, Russia and China held the veto that blocked the referral of the situation in Syria. It becomes difficult to reconcile the referral of the situation in Darfur alongside the uneven use of the veto in comparable situations in other places, based on strong political alliance and little else. The hyper-focus on Africa and uneven application of justice yields some important insights about the ICC thus far and raises some serious concerns.

To this point, the AU has levied some heavy criticism against the Court. Yet, the overall sentiment is not one of abandon, but rather of compromise. Given that ten out of the eleven situations under investigation at the ICC are African, taking these concerns seriously should remain a priority. Yet, it remains that many African states need and want the ICC in order to pursue international criminal justice, stop impunity, and provide accountability for war criminals. Positively, Africa-ICC issues are a prominent feature of the ASP this year and this should provide the forum and space for constructive conversation based on grievances, lessons learned, and ideas about how to move forward.

With respect to South Africa’s specific concerns regarding immunity, the Court (and the wider international criminal law community) is listening. The AU has asked the International Court of Justice for an advisory opinion on the status of head of state immunity under international law. Perhaps even more apt, Jordan has appealed a judgment of non-compliance for failing to arrest and surrender al-Bashir on the basis of immunity when he visited the country. Submissions were made in September and this judgment could be significant in mediating this issue. In the interim, it will be most interesting to see how the conversation at the ASP evolves with respect to the interdependence of cooperation and effectiveness and what this means for the ICC going forward, particularly in the context of the AU, and especially in its relationships with Burundi and South Africa.

Lastly, it is important to identify the shift in global sentiment away from the morally charged global imperatives and norms of the late 1990s and early 2000s. Isolationist trends have seen a resurgence in recent years and threaten the progress made in the area of international criminal justice. Thus, it will be an important imperative for the ASP to reiterate a strong commitment to these norms and ideals, and to articulate a shared, unified understanding of the same heading into 2019.

This blogpost and Sarah’s attendance to the 17th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

5 December 2018 – Despite the challenges faced by many jurisdictions, national courts are of tremendous importance to ensure redress for victims of international crimes. It is a well-known reality that the International Criminal Court (ICC) could not possibly take on all the cases involving crimes that fall under its jurisdiction. Not only the financial means and human resources necessary to accomplish this feat would be impossible to gather (we can only think of the challenges facing the Court at the moment with a limited number of cases), but the ICC is only meant to fill the famous, yet sometime elusive, “impunity gap”. This is why complementarity, at the very basis of the ICC’s philosophy of intervention, is guaranteed to remain a topic of high relevance at every future Assembly of State Parties (ASP) to the ICC. At this year’s ASP, starting on Wednesday, the complementarity-related jurisprudence in DR Congo will be analysed on December 7th at an event organized by Senegal and the Club des Amis du Droit du Congo. The case of Gambia and Ghana will also be discussed in relation to complementarity.

“Consultations between States Parties, the Court, civil society, and other actors regarding complementarity have highlighted differences in understanding of what complementarity means in practice for the Court, the ASP, and national systems – considering mandate limitations as well as challenges with funding, coordination, and political will.”

It however fortunately also reports that a “Complementarity Platform for technical assistance” was brought forward by the ASP Secretariat last October. While little information seems to be available as of today on the said platform, the CICC explains that it is meant to “facilitate[e] links between ICC States Parties requesting technical assistance with actors that may be able to assist national jurisdictions in their efforts to investigate or prosecute Rome Statute crimes.” We will make sure to gather as much information as possible during this 17th ASP on this interesting new initiative.

In the same vein, the ICC emphasized last October in its Report on Cooperation (para. 73) that “further engagement with regional organizations can help promote efforts regarding universality, implementing legislation, cooperation and complementarity […]”. It thus appears that the correct formula for the effective application of the principle of complementarity remains elusive and subject to the whims of various political and diplomatic ballets, both at the national and regional levels.

Yet, actions can be taken to stabilize this pitching boat. Positive complementarity, generally understood as domestic capacity-building to support and ensure investigations and prosecutions on core international crimes will, it makes little doubt, be the subject of much discussion at this year’s ASP. For example, the role of the ICC in supporting national and hybrid investigations and prosecutions will also be discussed during a side-event co-hosted by Luxembourg and the Open Society Justice Initiative. Human Rights Watch recently noted that “the term [‘positive complementarity’] has garnered increased recognition and has come to encompass initiatives by a range of actors to encourage national prosecutions of international crimes”. Yet, it also pondered “whether domestic challenges are too great for the ICC’s commitment to positive complementarity to surmount.” The organization indeed analyzed in great depth the impact of the ICC on national courts in a reportpublished last June, which goes over the Colombian, Georgian, British and Guinean contexts. We look forward to see if they will reappear during the discussions held at this 17th ASP.

National courts also have the opportunity to be an indispensable element of international justice in another complementary, yet more indirect, manner, through the application of universal jurisdiction. The European Center for Constitutional and Human Rights (ECCHR) defines it as “provid[ing] for a state’s jurisdiction over crimes against international law even when the crimes did not occur on that state’s territory, and neither the victim nor perpetrator is a national of that state. The principle allows national courts in third countries to address international crimes occurring abroad, to hold perpetrators criminally liable, and to prevent impunity.” Syria comes to mind immediately, with a few cases on atrocities committed in the midst of this conflict being heard before courts in Europe as we speak. A side-event documenting universal jurisdiction as an “emerging tool to complement” the work of the ICC will be co-hosted by Liechtenstein and by the ECCHR, presenting the perspectives of a prosecutor, a survivor, and those of the Impartial and Independent Mechanism for Syria and the civil society. Challenges abound on the universal jurisdiction front too, especially with regards to the gathering of evidence and the need for specialized expertise to collect, analyse and present it to judges in a fashion that will not only allow cases to be opened, but also with content that will ensure the long-term credibility and feasibility of prosecutions based on universal jurisdiction. It is about walking the fine line between idealism and realism. On that note, Civitas Maxima and the Center for Justice and Accountability are organizing a side event on December 11, titled “Closing the Impunity Gap: A Pragmatic Approach to Universal Jurisdiction”. Let us see how the conversation on this delicate exercise will unfold in the next 10 days.

This blogpost and Marie-Laure’s attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.